On September 25, NELA, the Institute, and A Better Balance jointly filed an amicus brief with the Fourth Circuit in the matter of Shipton v. BGE (No. 23-1360) urging the court to reject the “honest belief” defense in FMLA interference cases. The plaintiff in the case, Michael Shipton, was ostensibly terminated for misuse of FMLA leave, but his employer did not engage with any of the steps prescribed in the FMLA for dealing with concerns about fraud. Now the company has argued that they should not be liable for their actions because they had an “honest belief” that he had misused his FMLA leave when they terminated him. This claim cuts against the plain language of the FMLA, which only authorizes consideration of employer motivation for the purposes of determining liquidated damages. Although some courts have endorsed the use of the “honest belief” defense in FMLA retaliation cases, the Fourth Circuit has never sanctioned the defense, and should decline to do so now. NELA would like to thank Erika Jacobsen White of Joseph, Greenwald & Laake, P.A. and NELA President Carla Brown of Charlson Bredehoft Cohen Brown & Nadelhaft PC for their work on drafting and filing the brief.… Read More
FMLA
NELA Amicus Brief: Sharif v. United Airlines (4th Circuit)
On October 26, 2015, NELA joined the Metropolitan Washington Employment Lawyers Association (MWELA) in filing an amicus brief in the U.S. Court of Appeals for the Fourth Circuit in support of the Plaintiff-Appellant in Sharif v. United Airlines, Inc.
Drawing on an extensive line of cases from the U.S. Supreme Court and Courts of Appeals, the amicus brief systematically dismantles the legal and practical reasoning underlying the so-called “honest belief” defense. To accept a defendant’s professed “honest belief” that the reasons for taking an adverse action against an employee are correct, when presented with evidence that the asserted reasons are unworthy of credence, requires the court to draw a series of inferences regarding the weight of that evidence and the credibility of those presenting it, in favor of the non-moving party. This is forbidden at summary judgment, as recently re-affirmed by the U.S Supreme Court in Tolan v. Cotton, 134 S. Ct. 1861 (2014). Further, the brief thoroughly demonstrates that the application of the “honest belief” defense is incompatible with the longstanding rules courts have used to determine whether a defendant’s proffered non-discriminatory reasons are in fact a pretext for unlawful behavior.
The brief was drafted by Stephen … Read More
NELA Amicus Brief: Travers v. Cellco Partnership d/b/a Verizon Wireless (6th Circuit)
On March 3, 2014, NELA filed an amicus curiae brief in Travers v. Cellco Partnership d/b/a Verizon Wireless in the U.S. Court of Appeals for the Sixth Circuit in support of plaintiff Patricia Travers who was wrongfully terminated in violation of the ADA and in retaliation for taking FMLA leave. The court in the Middle District of Tennessee granted Cellco’s motion for summary judgment on Travers’ disability claim for two reasons. First, it found insufficient evidence that Travers was “regarded as” having a disability because Travers did not show that she was regarded as unable to do her job or as being substantially limited in performing the tasks of her job. Second, the court found insufficient evidence that the alleged misconduct was pretext. The definition of disability under the ADAAA is one of NELA’s current amicus priorities.
Travers had been terminated immediately upon her return to work after taking approved medical leave, allegedly for waiving mail in rebates for customers. Verizon’s FMLA leave is handled by third party administrator, MetLife. In order for an employee to not be penalized for taking medical leave, it must be designated as FMLA after the employee has gone through a cumbersome qualification process. Any … Read More
NELA Amicus Brief: Escriba v. Foster Poultry Farms (9th Circuit)
The National Employment Lawyers Association joined the National Partnership for Women & Families, A Better Balance, California Women’s Law Center, Equal Rights Advocates, National Women’s Law Center, and 9to5, National Association of Working Women, on an amicus brief filed on June 13, 2012, before the U.S. Court of Appeals for the Ninth Circuit in Escriba v. Foster Poultry Farms.
Our amicus brief highlights the Family and Medical Leave Act’s central intent to provide meaningful access to job-protected leave in order to prevent workers from losing their jobs when they need to care for a family member with a serious illness. The brief also highlights the regulations requiring employers to provide notice of FMLA rights. Finally, the brief offers data about workers’ lack of familiarity with the FMLA to underscore the critical need for employers to fulfill their legal obligations to provide proper notice of those rights.
Author: National Partnership for Women & Families… Read More
NELA Amicus Brief: Coleman v. Maryland Court of Appeals (U.S. Supreme Court)
On September 27, 2011, NELA and ten other organizations joined an amicus brief, written by the National Partnership For Women & Families, in the U.S. Supreme Court case of Coleman v. Maryland Court of Appeals (Case No. 10-1016). The question presented in Coleman is “whether Congress constitutionally abrogated states’ Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act.” The petitioner, Daniel Coleman, was an employee of the Maryland state court system until his termination after requesting leave due to a serious medical condition. The Fourth Circuit dismissed his FMLA claim, concluding that the state of Maryland was immune from suit, because Congress did not validly abrogate states’ Eleventh Amendment immunity with respect to the FMLA’s self-care provision.
The amicus brief argues that Congress validly abrogated state sovereign immunity for self-care claims in response to unconstitutional sex discrimination. In particular, we highlight the Congress’ intent in adopting the FMLA self-care provision to address discrimination against women of child-bearing age by providing leave for pregnancy-related disability and recovery from childbirth. The brief also explains that the FMLA ultimately provided self-care leave on a gender-neutral basis to avoid establishing special rights to leave for women, … Read More
